Director of Public Prosecutions (DPP) Noordin Haji on Sunday, October 30 said documents used to charge the then Mathira Member of Parliament Rigathi Gachagua in the Ksh7.4 billion graft case were forged.
Speaking on local television, Haji said the then Directorate of Criminal Investigations (DCI) Director George Kinoti "pushed his office through the media" to prosecute Gachagua.
"The decision was made on the threshold. We were pushed by the DCI himself through the media to the extent that individuals were going to say that we did not want to make the decision to charge Gachagua because we were compromised or some of us were sympathetic to certain people.
"However, when we looked at the evidence, we felt there was sufficient evidence to charge but later we discovered the documents were forged," he stated.
He also cited the presidential petition that Azimio la Umoja lost in the Supreme Court saying some of the documents presented as evidence were forged and DCI had certified them.
"No wonder the Supreme Court itself pronounced that they had hot air, and forged documents and my senior counsel James Orengo said some of the documents they used in the court were certified by the DCI.
"It was a pattern that most of the pieces of evidence especially on graft allegations that came from the DCI were based on documents that were flying all over and right now, we cannot even depend on them. We are going to review all graft cases that came from the DCI," he added.
Case against Gachagua
Should the DPP decide to press on with the charges, Gachagua will be the first Deputy President under the 2010 Constitution to appear in a local court for a criminal trial.
The Constitution however is not clear on whether the immunity enjoyed by the President against court proceedings extends to the Deputy President.
Under Article 143 (1) states criminal proceedings shall not be instituted or continued in any court against the President or a person performing the functions of that office, during their tenure of office.
Following the above lacuna in the Constitution on whether the Deputy President can face any trial either criminal or civil while still holding the position, this put the prosecution into a difficult situation on how to proceed with the case facing Gachagua.
Apart from terminating the criminal trial, law experts say the Prosecution has the option of suspending Gachagua’s trial and reopening the same once he leaves the presidency.
When the matter was called for hearing before Milimani Anti-Corruption Court magistrate Victor Wakumile on October 17, Prosecutor Vera Hamisi asked for an adjournment of the trial saying that the DPP needed more time to review the charges and the evidence in the case before the commencement of the hearing of the witnesses.
“The DPP seeks three weeks to review the cases before giving directions on the same. The process is already ongoing and had received applications from some of the accused persons urging for review of their charges,” Hamisi said.
